Leto v. Amrex Chemical Co.Leto v. Amrex Chemical Co.
Plaintiff Joseph A. Leto (hereinafter plaintiff), a plumber, and his wife, derivatively, commenced this action to recover damages for respiratоry injuries that plaintiff allegedly suffered as a result of a chemical spill that occurred while plaintiff was working in defendant‘s facility in October 2005. After defendant conceded nеgligence for the occurrence of the spill, a jury trial was held on the issues of causation and damages. The jury returned a verdict in favor of plaintiffs on the issue of causation and awarded damages totaling $2,511,150 for past and future pain and suffering, future lost earnings, and past and future medical expenses.1 Defendant unsuccessfully moved to, among other things, set aside the verdict and strike or reduce certain damages awards, and judgment was subsequently entered in favor of plaintiffs. Defendant appeals from the order denying its postverdict motion and from the judgment.
Initially, defendant contends that a multitude of errors made by Suрreme Court warrant a new trial. We disagree. Defendant first contends that plaintiffs’ counsel made various improper remarks during summation. However, because apparently neither party requested it, summation was not transcribed and, thus, we are unable to review defendant‘s contentions with respect thereto (see Sabia v National Fuel Gas Corp., 292 AD2d 807 [2002]; Wilcox v Morrow, 226 AD2d 1077, 1077-1078 [1996]). Moreover, we find no abuse of Supreme Court‘s discretion in denying defendant‘s motion for a new trial on this basis, as it was in the best position to assess whether defendant was prejudiced by the remarks of plaintiffs’ counsel (see e.g. Straub v Yalamanchili, 58 AD3d 1050, 1051 [2009]; Pyptiuk v Kramer, 295 AD2d 768, 770 [2002]).
Next, we are not persuaded that defendant was prejudiced by
Defendant next contends that Supreme Court improperly refused to give a spoliation charge and a toxic tort charge to the jury. Although defendant сontends that a spoliation charge was warranted due to plaintiff‘s failure to retain the shirt he wore on the day of the accident, insofar as defendant does not еstablish that plaintiff was on notice that this evidence would be needed for trial, we are not persuaded that the court was required to give such charge to the jury (comрare Marotta v Hoy, 55 AD3d 1194, 1197-1198 [2008]; Bigelow v Dick‘s Sporting Goods, 1 AD3d 777, 777-778 [2003]). As for defendant‘s request for a toxic tort charge, although the charge ultimately given to the jury differed from what defendant requested, we find that it adequately conveyed the proper legal principle (see e.g. Delong v County of Chautauqua, 71 AD3d 1580, 1581 [2010]).
Turning to defendant‘s challenge to the damages awards, although we are not persuaded that the jury‘s failure to award plaintiff any damages for past lost earnings renders its award for future lost earnings a nullity, we nevertheless agree that the award for future lost earnings is against the weight of the evidence, and Supreme Court should have granted defendant‘s motion to set aside the verdict in this respect (see e.g. Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; O‘Brien v Mbugua, 49 AD3d 937, 939 [2008]). Plaintiff was awarded $1,260,000 for future lost earnings, but we do not find that that amоunt was established with reasonable certainty (see O‘Brien v Mbugua, 49 AD3d at 939; Beadleston v American Tissue Corp., 41 AD3d 1074, 1078 [2007]).
The evidence in the record establishes that plaintiff—now self-employed—pays himself a wage equal to 1,600 hours a year at the union job rate, pursuant to the same union contract under which he was formerly employed. Thus, it is reasonably certain that plaintiff earned $44,900 in wages and pensiоn contributions in 2009. According to the union contract, he would have received $79,482 in wages and pension benefits, which results in a difference of $34,582; multiplied by 21 years, this results in a future lost eаrnings award of $726,222. Accordingly, the award for future lost earnings should be reduced to $726,222 or a new trial ordered on these damages if plaintiffs will not stipulate to that amount (see O‘Brien v Mbugua, 49 AD3d at 940).
Next, defendant contends that the awards of $140,000 for past pain and suffering and $1 million for future pain and suffering are excessive. In reviewing such awards, we must “determine whether they deviate [ ] materially from what would be reasonable compensation” (
However, we reach a different conclusion with respect to the $1,000,000 award for future pain and suffering. The evidence at trial supported a finding that, as a result of the accident, plaintiff suffered from a significant obstructive and restrictive lung disease, which is unlikely to improve and, potentially, could сontinue to worsen. Although “[a]n award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact for thе
We also find merit in defendаnt‘s argument that the $100,000 award for future medical expenses should be set aside. Plaintiffs’ proof on this issue consisted of evidence regarding plaintiff‘s past medical testing and mediсations, as well as the testimony of his treating physician that he expected plaintiff‘s future medical tests and medications to remain the same. However, there was no еvidence regarding how much these tests and medications had already cost plaintiff or would cost in the future. Contrary to plaintiffs’ contention, the stipulated past medicаl expenses award cannot be projected forward to determine these future costs (see Swedowski v Ethicon, Inc., 6 AD3d at 1199; Hotaling v CSX Transp., 5 AD3d 964, 970 [2004]). In the absence of competent proof of the cost of plaintiff‘s anticipated medical costs, he is not entitled to an award for future medical expenses (see Petrilli v Federated Dept. Stores, Inc., 40 AD3d at 1344; Swedowski v Ethicon, Inc., 6 AD3d at 1199).
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgmеnt and order are modified, on the facts, without costs, by reversing so much thereof as awarded plaintiff Joseph A. Leto $100,000 for future medical expenses, $1,260,000 for future lost earnings and $1,000,000 for future pain and suffering; vacate the award for future medical expenses and a new trial ordered on the issue of damages for future lost earnings and future pain and suffering unless, within 20 days after service of a copy of the order herein, plaintiffs stipulate to reduce the amount of the award for future lost earnings to $726,222 and for future pain and suffering to $500,000, in which event said judgment and order, as so modified, are affirmed.